H-1B Transfer

H1B Change of Employer Immigration Lawyer Chicago

If you are currently employed under an H1B visa, you may be wondering what steps you need to take in order to change job or change your H1B employer without violating your H1B status. Generally, H-1B visa similar to other work visas is employer-specific. Upon approval of an H-1B visa and the commencement of the H-1B employment, the H-1B worker is authorized to work for only the H-1B employer who petitioned for the visa.  However, any H1B workers who are considering changing job or changing their employer or company is permitted to do so through an immigration process called H-1B transfer. In this article, we will discuss the H1B transfer process and steps that you need to take to maintain your status, so that you can have a smooth and safe transition throughout your H1B status.

H1B Visa Transfer – Cap exempted to Cap subject 

When you consider doing a H-1B transfer, the issues of whether a new H-1B petition is counted against the current H-1B cap depends on whether the initial H-1B petition was cap-subject.  If the petition filed by the previous H-1B employer has already been counted against the cap, a petition for sequential H-1B employer filed by a new employer will not be counted against the H-1B cap again.  In that case,  a new H-1B employer may still be approved even if the cap has been exhausted at the time of the new H-1B filing.

Example 1:
Employer A – an IT firm petitioned an H-1B visa for a H-1B Employee.  The petition was filed timely and counted against the 65,000 H-1B cap.  Three years later H-1B Employee wants to work for  another company with Employer B, another private IT firm.  At the time of filing this new H-1B petition, the H-1B cap has been used up. Nevetheless, because H-1B Employee previous employer (Employer A) was counted against the cap, Employer B can file the new H-1B petition  anytime during the year and will not be subject to the H-1B cap.

Can you transfer H1B cap exempt to cap?

If your original H1B employer is a University or a affiliated non-profit organization, then for sure you were not counted against the H1b cap. Let say a private company wants to hire you. Your new employer will need to sponsor a new cap-subject H1b petition for you. It’s important to understand that there is a few things you need to consider when filing a new cap-subject H1b petition when you change employer from a non cap-subject H1B visa. The timing of filing is important as USCIS only accepts cap subject H1B in March each year. The adjudication period varies depending on whether when they run the lottery and whether or not your new employer and you wish to file a premium processing. Therefore, you would not start working for your new employer until October 1 where the H1B fiscal year usually begins.

Example 2:
Employer A is a cap-exempt organization and Employer B is a cap-subject employer, then H-1B Employee will be subject to the H-1B numerical limitation (H-1B cap). The new H-1B petition filed by Employer B will not be adjudicated unless a cap number is available to you at the time of filing the new H-1B petition. In short, employee will be subject to the H-1B online registration and lottery selection.

H-1B Portability

Under the “Portability Provisions” issued in 2000, a H-1B worker who was previously issued an H-1B visa is allowed to begin working for a new H-1B employer as soon as the new employer files an H-1B transfer petition for him/her. To be eligible for a H-1B transfer or to “port” or “transfer” from one employer to another employer, the H-1B worker must:

1. have been lawfully admitted into the United States.
2. have the new employer filed a “non-frivolous” petition while the alien was in a period of stay authorized by the Attorney General.
3. not have been employed without authorization since the last entry to the U.S.

Hire an experienced H-1B transfer lawyer in Chicago

Changing jobs under the H-1B visa category can be complexed and time sensitive.  If you are considering or in the process of transferring your H-1B visa or plan on changing to another H-1B employer, please call 773-687-0549 or contact us online to schedule a consultation. We have over 30 years of collective experience helping businesses and professionals for their work related immigration matters.

You may be interested in the following pages:

• H1B Cap
• H1B Extension
• Advantages and Disadvantages of H1B Visa
• H1B Registration Period
• Other Employment Immigration Options